Proportionate treatment

Labour & European Law ReviewWeekly Issue 22002 June 2011

Section 2(2) of the 1975 Sex Discrimination Act provides that a man cannot complain of sex discrimination because of the "special treatment afforded to women in connection with pregnancy or childbirth". In Eversheds v De Belin, however, the Employment Appeal Tribunal (EAT) said that the “special treatment” provisions are limited to what is proportionate.

Basic facts

Mr De Belin was told in September 2008 that either he or his colleague, Ms Reinholz (who together made up the Real Estate Investor Team), would be made redundant.

The company used various performance criteria, including one called “lock up”, which measured the length of time between undertaking a piece of work and receiving payment from the client. Mr De Belin scored 0.5 on this test.

As Ms Reinholz had been on maternity leave for more than six months at the time lock up was measured, the company applied its usual policy for candidates for redundancy on maternity leave and awarded her the maximum score of 2.

Mr De Belin’s overall score at the end of the exercise was 27; that of Ms Reinholz was 27.5. He was therefore selected for redundancy.

Mr De Belin claimed that by applying a more favourable score to Ms Reinholz on grounds of her maternity she was treated more favourably because of her sex . He suggested a number of alternative approaches such giving them both a notional score of 1; averaging performance over twelve months or scoring Ms Reinholz at a convenient date before she went on maternity leave

The company said that it was positively required by the law to give her the maximum score to offset any disadvantage because she was on maternity leave.

The Tribunal upheld his claim for sex discrimination. It said that by giving Ms Reinholz a notional maximum score while confining Mr De Belin to his own actual score, Eversheds unlawfully discriminated against him on the grounds of his sex

It followed, said the Tribunal, that if her score was unfairly inflated, it was not within the range of reasonable responses for Eversheds to dismiss him. So not only had it discriminated against him, it had also unfairly dismissed him.

EAT decision

The EAT agreed with the Tribunal.

It said that although employers are obliged to sometimes treat women who are pregnant or on maternity leave more favourably than their colleagues in order to ensure they are not disadvantaged because of pregnancy, maternity and childbirth, it was important not to give that protection wider scope than was required.

It was necessary to read the words "special treatment afforded to women in connection with pregnancy or childbirth" as referring only to treatment which constituted a proportionate means of achieving the legitimate aim of compensating the woman for the disadvantages occasioned by her pregnancy or her maternity leave.

The question therefore was whether the “means” adopted by Eversheds to resolve the problem caused by Ms Reinholz's absence as at the measurement date were proportionate.

In the EAT’s view, the “means” had gone beyond what was reasonably necessary and there were alternative ways of removing any maternity-related disadvantage without unfairly disadvantaging Mr De Belin. For example, they could have measured the lock up performance of both candidates using the last date when she was at work.

It also dismissed the appeal against the Tribunal’s finding of unfair dismissal.

Comment

This decision seems to have been driven by a sense of injustice that the EAT felt Mr De Belin had suffered. In so doing it has introduced a test of proportionality which appears to limit the circumstances when the special treatment afforded to women will apply. The EAT’s approach to this provision is arguably wrong and is not supported by any other authority. Hopefully this issue will be considered by the higher courts.​